ByDane Stallone |June 12, 2018

An automated version of DNA testing, approved by the FBI this month for use by law enforcement and backed by Attorney General Jeff Sessions, is sparking concerns about the growing threat to privacy posed by emerging justice technology.

One version of the so-called “Rapid DNA Analysis” system, developed by the Boston-area ANDE corporation, was the first to receive approval for use in the National DNA Index System (NDIS), the national database that contains DNA profiles from participating federal, state and local forensic labs.

Fully automated, Rapid DNA systems can produce a DNA identification from a sample in just a few hours. This is much faster than standard DNA forensic testing methods, which can sometimes take days, weeks, or months.

Civil rights advocates like the American Civil Liberties Union contend that DNA identification of arrestees is already an unnecessary invasion of privacy, and that Rapid DNA represents an extension of those fears.

“You have to wonder why law enforcement think they need the nuclear bomb of identification,” said Jay Stanley, a senior policy analyst for the ACLU.

Rapid DNA is used for two main applications: identifying arrestees and the quick analysis of crime scene samples like bloodstains, tissue, or cigarette butts. Crime scene samples have not received NDIS approval and cannot be entered into the federal database.

NDIS approval from the FBI has allowed them to create the “RDIS” (Rapid DNA Index System), which will be tested over the coming months. This will allow thousands of police stations to run arrestee DNA ID’s through the NDIS and look for potential matches.

Those in favor of expanding DNA databanks at law enforcement agencies argue that the information obtained by a Rapid DNA test does not reveal unnecessary information, and that people sometimes confuse them with DNA profiles, which are much more in depth.

Richard Selden, president and founder of ANDE, says that Rapid DNA ID’s contain no information about an individual’s health or appearance.

“DNA ID’s have no social, racial, economic, gender, or any other bias,” Selden told The Crime Report.

Selden also pointed out that DNA ID’s could be used to determine close familial relationships, which he says could help reduce human trafficking.

Critics maintain, however, that this could implicate family members in crimes they had no connection with, and turn them into false suspects.

Another issue raised by civil liberties advocates is the difficulty of expunging the DNA ID’s of suspects who turn out to be innocent.

Of the 30 states that allow for DNA collection from arrestees, only a handful take responsibility for expunging the ID’s of arrestees who aren’t ultimately convicted. The majority of states put the burden on the individual to expunge their ID’s from the database.

A study by the National Institute of Justice found that when the responsibility is placed on the individual, “very few expungements actually occur, and profiles are retained of individuals who were never formally charged with a qualifying offense or whose case resulted in acquittal or dismissal.”

There is also a question of whether or not law enforcement and the FBI actually need DNA ID’s to identify arrestees in the CODIS. DNA profiles require electronic fingerprint identification in order to be entered and stored in the CODIS to begin with, and while new markers are steadily being integrated, fingerprints remain the primary mode of identification for the FBI.

The ACLU argued in an amicus brief for a Supreme Court case in 2013 that contrary to the government’s claims that DNA testing is primarily for the purposes of identification, the main function of DNA collection is to try to link arrestees to other crimes.

The Supreme Court rejected the argument, ruling that when an arrest is made under probable cause for a serious offense, DNA collection of the suspect is not a violation of the Fourth Amendment.

While efforts by federal agencies to advance Rapid DNA testing have been going on for nearly a decade, the Rapid DNA Act of 2017 allowed the FBI to determine standards and practices for forensic labs and police booking stations to use Rapid DNA systems.

During hearings for his nomination as Attorney General in early 2017, Jeff Sessions spoke enthusiastically to the Judiciary Committee in support of Rapid DNA testing.

“After many years in law enforcement community, that’s one of the biggest bottlenecks, of all our laws involving prosecutions of criminal activity, is the bottleneck of scientific analysis, where we fail to get DNA back, fingerprint analysis, drug analysis, or chemical analysis,” said Sessions.

Selden says that the company is working with the FBI and many other states in planning initial implementation of ANDE instruments and has received an enormous amount of interest from agencies all across the country.

Law enforcement supporters of Rapid DNA testing say it saves time in the investigations of critical cases, and can help speed up exoneration of false suspects as well.

Rapid DNA testing has been in operation in numerous police agencies for several years, and has been used to help solve crimes in South Carolina, Pennsylvania, Arizona, and Florida, among others.

Nevertheless, the ACLU’s Stanley is wary about the potential dangers of Rapid DNA testing, despite the benefits it affords law enforcement.

DNA testing of arrestees, which Rapid DNA will make much easier, could exacerbate racial biases and disparities within the criminal justice system.

“If you’re putting everyone arrested in the DNA pool, then you’re going to see more black people turned into false suspects,” said Stanley.

Stanley says the serious privacy concerns raised by critics about new technology can be addressed by the development of government policies that ensure they are used responsibly.

“Sometimes you do see blowback, like with Facebook recently, and then you have conversations starting about whether it needs more regulation or not,” he said.

Dane Stallone is a TCR news intern. He welcomes comments from readers.

TCR's WEEKLY Criminal Justice Newsletter is FREE! Subscribe Here

Read Next

Facial recognition software has been in use for more than a decade. As it gets cheaper, retailers and many smaller police departments are eyeing it as a viable tool for targeting shoplifters; but how will privacy concerns be addressed?

The execution of Carey Dean Moore went forward on Tuesday after a federal appeals court denied a drug company's request to halt the lethal injection over concerns about whether the drugs were obtained improperly by the state.

A new report by the American Bar Association's Senior Lawyers Division makes nine recommendations and suggests 45 "action items" that it says can advance public health efforts to confront the opioid epidemic. One recommendation calls for promoting policies and laws that support families and caregivers struggling with opioid and substance misuse disorders.

In a report issued Tuesday, the Prison Policy Initiative found that people who have been to prison are 10 times more likely to be homeless than the general public. Recommended policy initiatives include barring housing discrimination against returning citizens.

A hearing on state Senate Bill 1391, which would prevent youths under 16 from being sent to adult courts, is scheduled Thursday. Supporters say it will reduce recidivism rates and better rehabilitate and prepare youth for successful, productive reentry into society.